Citation Nr: 21022707 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 15-31 976 DATE: April 19, 2021 ORDER Entitlement to an initial 10 percent rating, but no higher, for pseudofolliculitis barbae (PFB) with vitiligo, left anterior neck prior to October 15, 2019 is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a rating in excess of 10 percent for PFB with vitiligo, left anterior neck from October 15, 2019 is denied. FINDINGS OF FACT 1. The Veteran’s PFB with vitiligo, left anterior neck is manifested by one characteristic of disfigurement of the neck. 2. For the entire appellate period, the Veteran’s PFB with vitiligo, left anterior neck is not manifested by two or three characteristics of disfigurement of the neck. CONCLUSIONS OF LAW 1. The criteria for an initial 10 percent rating, but no higher, for pseudofolliculitis barbae with vitiligo, left anterior neck are met prior to October 15, 2019. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.118, Diagnostic Codes (DCs) 7800-7805, 7813. 2. The criteria for a rating in excess of 10 percent for PFB with vitiligo, left anterior neck from October 15, 2019 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.118, Diagnostic Codes DCs 7800-7805, 7813. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from September 1974 to July 1977. This matter comes before the Department of Veterans Affairs (VA) Board of Veterans’ Appeals (Board) on appeal from an Agency of Original Jurisdiction (AOJ) rating decision dated in November 2013. The Veteran testified at a Board hearing in February 2017. A copy of the transcript has been associated with the record. The Board remanded this case in August 2018 for additional development. The AOJ substantially complied with the remand directives, making another remand unnecessary. 1. Entitlement to a compensable rating prior to October 15, 2019 and in excess of 10 percent thereafter for PFB with vitiligo, left anterior neck Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. The percentage ratings are based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If the evidence for and against a claim is in equipoise, the claim will be granted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. §§ 4.3, 4.7. Otherwise, the lower rating will be assigned. Staged ratings are appropriate in any initial rating/increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran’s service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Board notes that the Veteran filed his claim for service connection for PFB in December 2012, and that the appeal of the Veteran’s rating was pending when the regulations for rating skin disabilities were amended in August 2018. As the 2018 amendments cannot be applied to the appellate period prior to August 13, 2018, the Board will consider the Veteran’s claim under the pre-2018 criteria for the appellate period prior to the amendments. For the appellate period after August 13, 2018, the Board will apply whichever criteria are more favorable to the Veteran. The Veteran’s PFB with vitiligo, left anterior neck is presently rated as noncompensable prior to October 15, 2019 under DC 7813-7806, and at 10 percent disabling effective October 15, 2019 under DC 7823-7813. When a disease, injury, or residual condition requires rating by analogy, the DC number will be hyphenated. The additional code used to identify the specific basis for the evaluation is shown after a hyphen. 38 C.F.R. § 4.27. DC 7813 applies to dermatophytosis, and the pre-2018 version of that code instructs the rating body to “rate as disfigurement of the head, face, or neck (DC 7800), scars (DCs 7801 to 7805), or dermatitis or eczema (DC 7806), depending upon the predominant disability.” The amended version of DC 7813 indicates that the skin disability should be evaluated under the General Rating Formula for the Skin. The General Rating Formula is detailed below. DC 7823 applies to vitiligo. A 10 percent rating is warranted for exposed areas affected. A noncompensable (0 percent) rating shall be assigned when the areas affected are not exposed. The 2018 amendments did not change the criteria under DC 7823. DC 7800 applies to burn scars of the head, face, or neck; scars of the head, face, or neck due to other causes; and other disfigurement of the head, face, or neck. The Board notes that the 2018 amendments did not change the substance of DC 7800. A 10 percent rating shall be applied for one characteristic of disfigurement. A 30 percent rating as applicable with visible or palpable tissue loss and either feature or paired set of features (nose, chin, forehead, eyes, ears, cheeks, lips), or; with two or three characteristics of disfigurement. Note 1 to DC 7800 explains that the eight characteristics of disfigurement are: scar 5 or more inches in length (13 or more centimeters (cm)); scar at least one-quarter inch wide (0.6 centimeters ); surface contour of scar elevated or depressed on palpation; scar adherent to underlying tissue; skin hypo- or hyperpigmented in an area exceeding 6 square inches (39 square centimeters); skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding 6 square inches (39 square centimeters); underlying soft tissue missing in an area exceeding 6 square inches (39 square centimeters); and skin indurated and inflexible in an area exceeding 6 square inches (39 square centimeters). DCs 7801 and 7802 apply to burn scars or scars due to other causes not of the head, face, or neck. Therefore, neither the pre-amended version nor the amendments is applicable to the Veteran’s PFB. DC 7804 applies to painful or unstable scars. The 2018 amendments did not change the substance of DC 7804. Under that code, scars can be assigned a rating of 30 percent with five or more scars that are unstable or painful. A rating of 20 percent requires three or four scars that are unstable or painful. A rating of 10 percent requires one or two scars that are unstable or painful. Note 1 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Under the pre-amended version of DC 7805, other scars (including linear scars), not otherwise rated under DCs 7800-04, in addition to the other effects of scars which are otherwise rated under DCs 7800-7804, are to be rated based on any disabling effects not provided for by DCs 7800-7804. 38 C.F.R. § 4.118, DC 7805. This includes, where applicable, diagnostic codes pertaining to limitation of function. Id. Under the amendments to DC 7805 for scars, the phrase “(including linear scars)” was replaced with “and other effects of scars evaluated under diagnostic codes 7800, 7801, 7802, or 7804.” 38 C.F.R. § 4.118, DC 7805 (August 13, 2018). Under the former version of DC 7806 for dermatitis or eczema, a noncompensable (0 percent) rating is assigned for less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and; no more than topical therapy required during the past 12-month period. A 10 percent rating requires at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating requires that 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas be affected, or systemic therapy such as corticosteroids or other immunosuppressive drugs be required for a total duration of six weeks or more, but not constantly, during the past 12-month period. 38 C.F.R. § § 4.118, DC 7806 (2008). Under the new criteria, a note preceding 38 C.F.R. § 4.118 provides that, for the purposes of this section, “systemic therapy is treatment that is administered through any route (orally, injection, suppository, intranasally) other than the skin, and topical therapy is treatment that is administered through the skin.” DC 7806 continues to apply to dermatitis or eczema, but is rated under the General Rating Formula for the Skin (General Rating Formula). Under the General Rating Formula, a 10 percent rating is warranted where at least one of the following is present: characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or at least 5 percent, but less than 20 percent, of exposed areas affected; or intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of less than 6 weeks over the past 12-month period. A 30 percent rating is warranted where at least one of the following is present: Characteristic lesions involving 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. Because “systemic therapy,” which is the type of therapy that creates compensability, is connected to the phrase “corticosteroids or other immunosuppressive drugs” by “such as,” those drug types do not constitute an exhaustive list of all compensable systemic therapies, but rather serve as examples of the kind and degrees of treatments used to justify a particular disability rating. Mauerhan, 16 Vet. App. at 442. Consequently, the types of systemic treatment that are compensable under Diagnostic Code 7806 are not limited to “corticosteroids or other immunosuppressive drugs.” Compensation is available for all systemic therapies that are like or similar to corticosteroids or other immunosuppressive drugs. Warren v. McDonald, 28 Vet. App. 194 (2016). In Johnson v. Shulkin, 862 F.3d 1351, 1354-56 (Fed. Cir. 2017), the United States Court of Appeals for the Federal Circuit (Federal Circuit) found that “systemic” is defined as “pertaining to or affecting the body as a whole” and “therapy” is defined as “treatment of diseases.” In Burton v. Wilkie, 30 Vet. App. 286, 291 (2018), the Court discussed two ways that a treatment could be shown to be systemic: (1) The method by which the treatment works to treat the medical condition and (2) the side effects that are possible or actually experienced as a result of the treatment. Turning to the evidence, a private treatment record shows that in May 2013, the Veteran was advised to apply ketoconazole cream in the mornings for PFB, and tretinoin gel at night. The treatment plan indicates “topical medication.” The Veteran’s outpatient records indicate that VA filled his prescriptions for ketoconazole and tretinoin throughout the appeal period. The Veteran was afforded a VA examination for skin disabilities in August 2013. The Veteran was diagnosed with vitiligo, which was noted to have been present on his entry to service. The Veteran was also diagnosed with PFB. The Veteran reported no treatment for his PFB. The examiner indicated that the Veteran’s PFB did not cause scarring or disfigurement of the head, face, or neck. He was not treated with oral or topical medications in the past 12 months. On physical examination, the veteran had few hyperpigmented papules on the hair-bearing areas of his neck and chin. There were no nodules, cysts, abscesses, or scarring. The examiner explained that the Veteran’s vitiligo was not aggravated beyond its natural progression during service. The Veteran submitted a statement with his Notice of Disagreement (NOD) in December 2013. He explained that he used anti-inflammatory medication for his PFB. In February 2015, the Veteran argued that a higher rating was warranted because PFB affected more than 5 percent of his face. The Veteran testified at a hearing in February 2017. He explained that he has raised bumps when he shaves his face and neck, and argued that the bumps are disfigurement or scars. The bumps itched. The Veteran reported that when he shaved across the bumps, they sometimes developed pus and became painful or burned. He also reported dark spots, discoloration, and “craters” or high and low points. His PFB covered the lower half of his face and the front of his neck. The Veteran testified that his condition had not changed since the previous VA examination. The Veteran underwent a VA examination in October 2019. The examiner explained that the Veteran had a rash on the bearded areas of the face and neck, which was manifested by multiple bumps, and worsened with shaving. The examiner noted that the Veteran had residual scars, and tretinoin cream did not improve his symptoms. The method of treatment was topical and constant or near-constant. The Veteran’s PFB affected less than 5 percent of total body area and less than 5 percent of exposed area, and caused multiple papules that were hyperpigmented. The examiner opined that the Veteran’s skin condition caused scarring or disfigurement of the head, face, or neck. The details provided also indicate that the Veteran had a scar on the left anterior neck measuring 2 cm x 0.2 cm from PFB. The onset of the scar was around 1975, and it had stayed the same since. The scar was not painful or unstable. There was no elevation, depression, adherence to underlying tissue, missing underlying soft tissue, abnormal texture, induration, or inflexibility. The scar was not painful on palpation, but there was an area measuring 0.4 square centimeters of hyperpigmentation. The examiner responded “yes” when asked if the treatment “included systemic therapy such as topical or other corticosteroids or immunosuppressive drugs,” but explained that there was no more than topical therapy required since the Veteran’s skin condition was superficial, and systemic therapy was not required according to standard medical care. Primarily, the Board must first determine which diagnostic code applies to the Veteran’s PFB with vitiligo. The Board concludes that 7823-7800 is applicable. The Veteran has a diagnosis of vitiligo, meaning 7823 applies. However, separate ratings would not be warranted under DC 7823 and DC 7800 because that would constitute pyramiding. 38 C.F.R. § 4.14 provides, “the evaluation of the same disability under various diagnoses is to be avoided,” and “the evaluation of the same manifestation under different diagnoses [is] to be avoided.” In this case, the effects of vitiligo are contemplated by the award herein of a 10 percent rating for one characteristic of disfigurement under DC 7800. Therefore, as the characteristic of disfigurement overlaps, a separate rating is not warranted. DC 7800 is applicable because it specifically applies to scars of the head, face, or neck due to burns or other causes, and would result in the highest possible rating for the Veteran’s PFB. The Board finds that DC 7804 does not apply because the medical evidence shows that the Veteran’s scar is not painful or unstable. While the Veteran testified that he had pain and burning, he indicated that the bumps were painful, not his scar, and the October 2019 examiner indicated there was no pain on palpation of the scar. DC 7806 does not apply because the Veteran does not have a diagnosis of eczema or dermatitis. Moreover, applying DC 7806 or the General Rating Formula is not favorable to the Veteran, as the rating is based on total body area or affected area involved or the type of therapy, and the record reflects that the Veteran used topical therapy in the form of creams and gels on the surface of the skin, and the VA examinations indicate that less than 5 percent of exposed and total body areas are affected by PFB. These findings would result in a noncompensable rating under DC 7806. Under DC 7800, the Board resolves reasonable doubt in the Veteran’s favor and grants an initial 10 percent rating, but no higher, prior to October 15, 2019 for PFB with vitiligo. The claim for a rating in excess of 10 percent is denied for the entire appeal period. The record shows that the Veteran’s PFB causes a rash, bumps, papules, and hyperpigmentation on the bearded areas of his face and neck. As noted above, under DC 7800, a 10 percent rating is warranted for one characteristic of disfigurement, which includes abnormal skin texture (irregular, atrophic, shiny, scaly, etc.) in an area exceeding 6 square inches (39 square centimeters). While the VA examinations of record do not indicate that the Veteran’s skin texture was abnormal, nor do they indicate the total surface area affected by bumps or rash, the Board finds that this criterion is met. The use of the word “etcetera” in the rating criteria indicates that “irregular, atrophic, shiny, [and] scaly” are examples of abnormal skin texture, but not requirements for granting a rating under this DC. The Veteran is competent to report observations of the texture of his skin, and the Board finds no reason to question his credibility, especially given that the medical evidence similarly indicates discoloration and papules. The Board affords the VA examinations of record some, but not significant weight, in their findings that the Veteran’s skin was not of abnormal texture, when they clearly documented papules and a rash. In the Veteran’s case, the Board finds that bumps and papules over the neck and chin are abnormal texture. Additionally, while the VA examinations of record do not document the total area affected by PFB, the Board resolves reasonable doubt in the Veteran’s favor in finding that the area of abnormal texture is at least 6 square inches. The evidence shows that the bearded area of the Veteran’s neck is affected, and the Board finds that it is at least as likely as not an area measuring 2 inches x 3 inches. As the criteria for a 10 percent rating have been met prior to October 15, 2019, the Board grants the claim to this extent only. For the entire appeal period, the claim for a rating in excess of 10 percent is denied. Under DC 7800, a 30 percent rating would be warranted for two or three characteristics of disfigurement. However, the evidence shows that the Veteran does not have a scar 13 cm or more in length, or a scar 0.6 cm wide, surface contour of scar elevated or depressed on palpation, scar adherent to underlying tissue, hyperpigmentation in an area over 39 square cm, underlying soft tissue missing, or skin indurated or inflexible, any of which would count as a second characteristic and warrant a higher rating. The Board affords the October 2019 VA examination significant weight in this regard, as it adequately documented the length and width of the Veteran’s scar. The Board also finds that a higher rating is not warranted under a different diagnostic code. As noted above, for a rating higher than 10 percent under the pre-2018 version of DC 7806, the Veteran’s PFB with vitiligo must involve 20 to 40 percent of the entire body or 20 to 40 percent; or systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of six weeks or more, but not constantly. The 2018 amendments required the same percentages, defined systemic therapy as any treatment other than the skin, and added “phototherapy, retinoids, biologics, photochemotherapy, PUVA,” as other examples of systemic therapy. Based on the medical evidence of record, the Board finds that the Veteran’s PFB affects less than 20 percent of the entire body, and required no more than topical treatment. While the Veteran’s use of treatment was constant or near-constant, and his representative argued it was systemic, the Board finds that it was not. The May 2013 treatment note indicates “topical treatment” for PFB, and the VA records regarding the prescription show that the ketoconazole and tretinoin were applied to the skin. The October 2019 examiner, which the Board finds adequate regarding the criteria of DCs 7804 and 7806, and affords significant weight for the findings related to those criteria, also explained that the Veteran’s PFB was superficial. The examiner may have responded “yes” to an inquiry about corticosteroids or immunosuppressive drugs, but the question actually included the words “topical therapy.” Based on this evidence, the Board finds that the Veteran’s treatment did not affect the body as a whole, and a higher rating is not warranted under DC 7806. Finally, a higher rating is also not available under DC 7804. A 20 percent rating is applicable to three or four scars that are painful or unstable. While the Veteran testified that he considers the bumps to be scars, and the Veteran’s representative argued for a higher rating under DC 7804, the Board finds that the Veteran only has one scar. The Board notes that the Veteran is not competent to differentiate a scar from a rash, bump, cyst, hyperpigmentation, or papule. The issue is medically complex, as it requires the interpretation of symptoms, history, and medical findings by a trained medical professional. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The October 2019 VA examiner indicated that the Veteran only had one scar. In relying on the competent and adequate VA examination of record, the Board denies a higher rating based on the number of painful scars. In sum, the Board finds that a 10 percent rating for PFB with vitiligo is warranted for the entire appeal period pursuant to DC 7823-7800. To the extent the claim is denied, the preponderance of the evidence weighs against the claim. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Smith, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.